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Sentencing "reform"

It's no secret that America is the incarceration capital of the world.  For every 100,000 people in this country, 716 are in prison.  By comparison, the rate is 148 in England, 103 in France, and 51 in Japan.  And that's just the Western democracies.  Think Iran is a lock-'em-up-and-throw-away-the-key kind of place?  Their rate is 284.  How about Uganda, certainly not the paradigm of individual liberty.  Their rate is 102.

President Obama's commutation of the sentences of 46 non-violent drug offenders was a drop in the bucket; it represented less than .02% of Federal prisoners.  But everybody, even normally "tough-on-crime" conservatives, have come around to the view that we've got to do something about "Incarceration Nation."

Well, not everybody.

Bill Otis, for one.  He writes for the Crime and Consequences blog, and he is resolute in his opposition to the sentencing reform movement, and blunt in his argument.  As he told attendees at the Federal Society's annual National Lawyers Convention last fall, "Two facts about crime and sentencing dwarf everything else we've learned for the last 50 years: When we have more prison, we have less crime. And when we have less prison, we have more crime."

That might be a simplistic assessment, but it's not unmoored from reality, to say the least.  If you want to graph incarceration rates with crime rates, you'll get two opposite trends.  In 1980, there were approximately 300,000 prison inmates.  By 2013, the number had increased five-fold, to 1.5 million.  In 1980, the violent crime rate was 596 per 100,000.  It climbed to 757 by 1993, then fell steadily, bottoming out at 368 in 2013.

Correlation isn't proof of causation, but there's little question that increased incarceration played a role in decreasing crime.  The fact is that crime is dominated by repeat offenders.  An analysis of 2006 data from the 75 largest counties in the country showed that 61 percent of felony defendants had at least one prior conviction, and half had multiple convictions.  Over a third, including 30% of those charged with a violent felony, had ten or more prior arrests.  Getting those people off the street will obviously result in a substantial reduction in crime.

And that's a problem, because while most of the attention on sentencing reform has been directed at drug offenders, that's not the real reason for the high incarceration rates.  True, over half of all Federal inmates were sentenced for drug offenses, but Federal prisons account for only one-seventh of the prison population in this country.  The vast bulk are in state prisons, where only 17% are serving time for non-violent drug offenses, and those are usually relatively short sentences.  On the other hand, since 1990 60% of the growth in state prison populations came from locking up violent offenders.  And even those "non-violent" drug offenders often have a history of violent conduct.

The aphorism that no politician lost an election by being hard on crime is being tested by the sentencing reform movement, but the entire effort there is directed at reducing sentences, mostly mandatory minimums, for drug offenders.  Nobody, but nobody, is going to be advocating reducing sentences for murder, rape, robbery, burglary, and other violent felonies.  And if you're not going to do anything about that - and do it on the state level - any reduction in the prison population is going to be a drop in the bucket.  That was shown by HB 86.  When passed by the Ohio legislature in 2011, its reforms - raising the monetary threshold for theft and property crimes, requiring judges to make findings before imposing consecutive sentences - were heralded as a method of reducing the state's prison population.  The result?  By June of 2014, the number of inmates was at a record high, 4,100 more than the Ohio Department of Rehabilitation and Corrections had predicted just two years earlier.

That's not to suggest that sentencing reforms are doomed.  Drug sentences in the Federal system have been substantially reduced, through reduction in the cocaine crack/powder disparity, creation of a "safety valve" from mandatory minimums for non-violent drug offenders with no prior criminal history, and direction from the Justice Department to lessen prosecution of such offenders.  And Sen. Chuck Grassley, Chairman of the Senate Judiciary Committee and a long-time foe of a reduction in mandatory minimums in drug offenses, has climbed aboard the reform train, at least to the extent of discussing it.

So change will probably come, but don't look for any real reduction in prison populations.  Violent crime is where it's at.  The other day, I was talking to a lawyer who'd just tried a case where his client was charged with seven burglaries, all second degree felonies, meaning there was no weapon or physical harm involved.  He was convicted of all seven counts, and the judge gave him seven years on each one, and ran them consecutively.  He'll be 79 when - if - he gets out of prison.  Whether that's an appropriate sentence is a subject for discussion, but not in the appellate courts or the legislature.

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